Lack of informed consent leaves NHS liable

Posted: 17th April 2018

OperationWhen an operation goes seriously wrong and a personal injury claim is made, the issue of 'informed consent' can be critical.

Whenever an operation is performed, consent must be given, because all surgery does carry some clinical risk.

Clearly, such consent must be given on an informed basis: weighing up the risks and potential benefits in a reasoned manner.

That is only possible if the patient (or the person responsible for them) has the full facts made available to them in an unbiased manner.

A recent High Court case dealt with precisely this issue. It involved a schoolteacher who suffered from back problems and underwent spinal decompression surgery to relieve them. The result of the operation was that she was paralysed.

She brought a claim in the High Court which turned on whether she had given informed consent for the operation. On the evidence, the judge ruled that the risks of the operation had not been explained to her properly, so she had not given informed consent. Had she been made fully aware of the risks involved, she would not have gone ahead with the operation and would not have suffered the injury.

The Court found that the surgeon had used 'reasonable care and skill in carrying out the operation'. Despite that, the conclusion that the woman would have opted for more conservative treatment – rather than surgery with an attendant 1 in 500 to 1 in 100 risk of permanent paralysis – meant that the NHS trust that employs the surgeon was liable to her for her injuries. She was awarded £4.4 million in compensation.